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Should nurses become gatekeepers?

Dr Gerard Panting explains how the NHS Redress Scheme will allow low value negligence claims to be dealt with quickly and efficiently, and out of court

The NHS Redress Bill currently before Parliament will, when passed, introduce a new means of dealing with low value clinical negligence claims against NHS hospitals in England.Wales will probably follow suit in due course but Scotland and Northern Ireland have already made it clear that they have no intention of introducing similar schemes and may well look at alternatives.

Although the proposals do not extend beyond the hospital sector, there are a number of implications for GPs. First, some claims will involve GPs as well as hospitals. Second, some patients may turn to their GPs for advice when contemplating a claim. And last, but by no means least, following a review of the scheme in 2010 it may be extended to general practice a year or two later.

The origin of the proposals goes back to the 2001 general election when the National Audit Office published a report entitled Handling Clinical Negligence Claims in England.1 It revealed that in the 1999/2000 financial year:

the cost of clinical negligence to the NHS was almost £400 million

on average cases took 5.5 years to settle

legal fees often outweighed the compensation available to claimants

the estimated value of claims outstanding against the NHS had risen to £2.6 billion.

In short, the system was expensive, long-winded and inefficient.

In response, the government announced that the Chief Medical Officer Professor Sir Liam Donaldson would chair a committee to make the system for dealing with clinical negligence claims faster and fairer for both patients and healthcare professionals.

The result of that working party was a consultation paper entitled Making Amends which made a total of 19 recommendations (Table 1, below).2

Table 1: Summary of recommendations from Making Amends2

1. An NHS Redress Scheme should be introduced to provide investigations when things go wrong; remedial treatment, rehabilitation and care where needed; explanations and apologies; and financial compensation in certain circumstances.

2. The NHS Redress Scheme should encompass care and compensation for severely neurologically impaired babies, including those with severe cerebral palsy.

3. A national body building on the work of the NHS Litigation Authority should oversee the NHS Redress Scheme and manage the financial compensation element at national level.

4. Subject to evaluation after a reasonable period, considerations should be given to extending the scheme to a higher monetary threshold and to primary care settings.

5. The right to pursue litigation would not be removed for patients or families who chose not to apply for packages of care and payment under the NHS Redress Scheme. However, patients accepting a package under the Scheme would not subsequently be able to litigate for the same injury through the courts.

6. A new standard of care should be set for after-event/after-complaint management by local NHS providers.

7. Within each NHS Trust an individual at Board level should be identified to take overall responsibility for the investigation of and learning from adverse events, complaints and claims.

8. The rule in the current NHS complaints procedures requiring a complaint to be halted pending resolution of a claim should be removed as part of the reform of the complaints procedure.

9. Training should be provided for NHS staff in communication in the context of complaints, from the initial response to the complaint through to conciliation and providing explanations to patients and families.

10. Effective rehabilitation services for personal injury, including that caused by medical accidents, should be developed.

11. The Department of Health together with other relevant agencies, should consider the scope for providing more accessible high quality but lower cost facilities for severely neurologically impaired and physically disabled children, regardless of cause.

12. A duty of candour should be introduced together with exemption from disciplinary action when reporting incidents with a view to improving patient safety.

13. Documents and information collected for identifying adverse events should be protected from disclosure in court.

14.Where a claimant was seeking Legal Aid to pursue a claim for clinical negligence, the Legal Services Commission should take into account whether or not the case had already been pursued through the NHS Redress Scheme.

15. Mediation should be seriously considered before litigation for the majority of claims which do not fall within the proposed NHS Redress Scheme.

16. The expectation in paying damages for future care costs and losses in clinical negligence cases not covered by the new NHS Redress Scheme should be that periodical payments will be used.

17. The costs of future care included in any award for clinical negligence made by the courts should no longer reflect the cost of private treatment.

18. Special training should be provided for judges hearing clinical negligence cases.

19. The Department for Constitutional Affairs (DCA) and the Legal Services Commission should consider further ways to control claimants’ costs in clinical negligence cases which are publicly funded and the DCA and the Civil Justice Council should consider what further initiative could be taken to control legal costs generally.

A key theme of Making Amends was learning from mistakes, with another being that clinical negligence causes more than physical injury and that the psychological and social impact including anxiety, depression, fear of future treatment, disruption to work and family life, should not be underestimated.

Financial compensation failed to address these issues – redress should be seen in the round, and while it would never be possible to exclude risk from healthcare, the risk could be reduced and for those unfortunate enough to suffer harm, alternative approaches to compensation were possible.

The first recommendation was that an NHS Redress Scheme should be introduced to provide investigations when things go wrong; remedial treatment, rehabilitation and care where needed; explanations and apologies; and financial compensation in certain circumstances.

This scheme was aimed at the so-called smaller claims with a suggested ceiling on financial compensation at £30,000.

Recommendation 2 was, in effect, for a second redress scheme dealing with claims at the other end of the scale. As Making Amends puts it “the NHS Redress Scheme should encompass care and compensation for severely neurologically impaired babies, including those with severe cerebral palsy.”

The rationale behind selecting out the highest and lowest value claims was that at the lowest end of the scale legal costs frequently outweighed the compensation available to patients which was generally regarded as being iniquitous.

For the lower value claims, patients/claimants found it more difficult to obtain legal advice and access the civil justice system under conditional fee arrangements as there was a limited choice of lawyers. Solicitors are often reluctant to invest time and effort in small claims that reap poor financial reward.

On the other hand, claims at the top end of the scale accounted for approximately 80% of the cost to the NHS, and by providing compensation in cash and kind, the overall figure could be reduced. At the same time compensation packages could be made available to a wider range of children born under NHS care and suffering neurological impairment relating to or resulting from the birth.

Compensation would include a managed care package (essentially NHS-based care) plus a monthly payment for the costs of care that could not be provided through the care package, up to a limit of £100,000 per annum.

In addition there would be lump sum payments for home adaptations and equipment at intervals through the child’s life and an initial payment in compensation for pain, suffering and loss of amenity that would be capped at £50,000.

When published, the Redress Bill in effect reduced the proposals to establishing a redress scheme for claims up to £20,000 arising from acute NHS Trusts in England – the intention being to provide a fast-track alternative to court proceedings for less severe cases.

The no-fault compensation scheme for severely neurologically impaired babies was excluded from the Bill. In some ways this did not come as a surprise:

First, it could prove very costly.

Second, confining available benefits to birth injury cases could result in accusations of arbitrary injustice.

Third, running such a scheme in parallel with the existing court-based tort system is fraught with practical difficulties.

In practice, the revised redress scheme is intended to work like this:

Adverse events will be recognised by the Trust as and when they occur. Whether or not the patient has noticed anything, the Trust will explain what has happened and why, and apologise where appropriate.

If the patient has come to harm as a result, the Trust will also put the wheels in motion to offer a care package in cash and kind to compensate for the harm suffered.

If, however, both the Trust and patient fail to notice anything is awry and get proceedings underway, the scheme may be initiated as a result of the Healthcare Commission or Ombudsman involvement.

Each incident will be investigated by the responsible Trust and compensation packages compiled under guidance from the National Health Service Litigation Authority (NHSLA) on eligibility and levels of compensation. The NHSLA currently manages the NHS indemnity scheme.

Once an offer of redress has been made it remains on the table for a fixed time. This is likely to be 3 months but could conceivably be as short as 4 weeks or as long as 6 months. After this time withdrawal is automatic.

Patients who decline an offer of redress may sue through the courts as normal. However, for the few who now benefit from Legal Aid their entitlement may be affected as the Legal Services Commission can take refusal of the offer into account when deciding whether Legal Aid should be granted. It is also possible that the courts will take any refusal into account when considering costs.

From the clinician’s standpoint, the key issue is what standard of care is to be applied. Since 1957, the courts have relied on the Bolam Test3 expostulated by Mr Justice McNair – “a doctor is not guilty of negligence if acting in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art even though a body of adverse opinion also exists amongst medical men.”

The language may sound clumsy to modern ears but it does address all the key issues.

First, medical management can only be judged by individuals expert in the field – amateur second guessing leads only to injustice. Second, it applies to the state of the art at the time of the adverse incident not the expected level of expertise when the case is being reviewed. And third, it recognises that alternative approaches may be valid.

The Bolam Test comes under frequent attacks from claimants who see it as a charter for doctors to conspire against the laity. In practice, it does not work like that and peer review is the only means of establishing whether the care provided has been substandard,which inevitably brings you back, perhaps rebadged and rephrased, to the Bolam Test.

All this inevitably raises a number of questions.

For example, will it be easier for patients to get compensation? This is an impossible question to answer but the scheme is designed to facilitate making a claim so it is likely to result in more patients who have low value claims coming forward. The consolation for the NHS is that the larger damages bill is likely to be offset by a reduction in legal costs.

And then there is the question of claims valued at more than £20,000. These clearly fall outside the scheme, so for claims of this size, its introduction should have no material impact.

Making Amends contained a total of 19 recommendations including a duty of candour:3 “A duty of candour should be introduced together with exemption from disciplinary action when reporting incidents with a view to improving patient safety.”

Although this recommendation does not form part of the Bill, the GMC already requires doctors to inform patients when they become aware of possible adverse events.

In that sense, the Bill (if it follows Making Amends) will be adding a sweetener by providing an exemption from disciplinary action from both employers and the GMC for doctors reporting adverse events unless the doctor has committed a criminal offence or it would not be safe for the professional to continue treating patients.